This is an action for permanent injunction against the use of a structure located on defendant's premises for the stabling of horses. Plaintiff contends that such use is in contravention of the terms and provisions of the zoning ordinance of the Borough of Saddle River. Defendant, on the other hand, contends that such use is permissible as a nonconforming use.
The building in question, which is on defendant's 9-10-acre plot, is a barn situated approximately 5 feet from the easterly boundary line of said property, 240 feet from the house of the nearest neighbor and 400 feet back from the public road. It is 35 feet high, 66 feet wide and has a shed attached to the rear, the combined buildings being 65 feet deep.
The premises were purchased by defendant John Bobinski from Karl and Jane Manz in October 1967, in response to a newspaper advertisement that featured "a fine barn for stable horses."
Manz had acquired the property in 1916 and resided there with his wife and children for 41 years until the sale in 1967. In the earlier years Manz put the premises to farming use, raising certain crops and berries and as many as 1,700 chickens whose eggs he sold to a Paterson market. He kept a cow and seven or eight farm horses, stabling five in the barn's stalls and two or three in the attached shed along with related farm equipment.
Gradually, Manz cut down on his farming and, due to the consequential lack of need, disposed of the horses, the last one in 1940. From that time on the premises were not used for commercial farming although Manz, who took a position in the post office, continued to spray and care for many apple trees and maintained a small half-acre garden for family use. The barn structure was not put to use for any purpose during the period 1940 to 1967, and no horses or other animals were stalled therein. Nevertheless, he continued to spend money on the structure by painting it and
keeping it in otherwise good shape and repair so that the barn was "exactly the same when sold" to defendant.
The court finds that despite the lack of use of the barnstable for 27 years, the Manzes had no affirmative subjective intent to abandon the use of the structure for stabling horses. On the contrary, they often discussed the purchase of a horse for their daughter, albeit such purchase was repeatedly postponed because of her unwillingness to commit herself to take proper care of the animal. A real estate broker's inquiry as to whether they were interested in stabling four horses for a time was rejected only because it would be too much trouble for them.
Then, too, the Manzes always thought they could keep horses in the barn at any time they decided to resume doing so; that they had the right to keep horses there any time they wanted to, and they never intended to give up that right. As a matter of fact, long before 1940 when Manz began some mechanizing of his farm operations, he built a separate garage for his motor vehicles and motorized farm equipment rather than use or convert the barn for such storage. Pursuant to such understanding and intent, they represented to defendant that he would be able to keep nine horses in the stable and shed structure in accordance with the borough ordinance which permitted keeping one horse per acre.
It is clear that defendant purchased the property solely because of the barn and the anticipated use thereof for stabling his show horses and trotters and pacers.
Effective January 1, 1963 plaintiff borough adopted a codification of ordinances and effective August 7, 1965 adopted ordinance No. 134, so that in October 1967, when defendant acquired this property, classified as R-1, residential, horses were permitted to be maintained on such property provided the number did not exceed one horse per acre and they were housed in a structure not exceeding 20 feet in height and located at least 85 feet from any property line.
Section 8:11-1(v) of the ordinance reads that "it shall be prima facie evidence that a nonconforming use has been
abandoned when there has been a cessation of the exercise of such noncomforming use for a period of one (1) year," and thus creates a presumption of abandonment of a nonconforming use after a one-year lapse without such use.
Shortly after acquisition defendant made some repairs and commenced using the barn to stable horses. Plaintiff contends this is in contravention of the borough's zoning laws since the barn is less than 85 feet from any property line. Upon notification, defendant did not seek a building permit or a variance but merely ceased the repair of the structure and continued to use it as a stable.
A municipal court complaint was filed and on August 1, 1968 the judge of that court found defendant not guilty on the ground that the nonconforming use as a stable was a preexisting nonconforming use, which use had not been abandoned. However, a fine was imposed for failure to apply for a building permit prior to commencing repair work.
Defendant contends the disposition in the municipal court constitutes res judicata and, in any event, that the use of the stable is protected by N.J.S.A. 40:55-48 as a preexisting nonconforming use which has never been abandoned. It is plaintiff's position that a municipal court acquittal of a charge of violating a zoning ordinance is not a bar to a civil action seeking an injunction against the violation of the same ordinance; that noncomforming uses not in actual use at the time of the effective date of a zoning ordinance are violations of that law and may not be continued, and that the failure to employ the structure as a barn-stable for a period of 25 years constitutes an abandonment of such use -- that some affirmative action is required to preserve a nonconforming use, not just an intent to preserve the right to so use the property.
It has been held in New Jersey that a municipal court action charging an ordinance violation is, procedurally at least, and within the intendment of the rules providing for appeals from judgments of conviction in the inferior ...